CASE LAW UPDATE

Facts: Els is a businessman whose company, Praxley, provides corporate advisory services. He was contacted by someone claiming to be a Mr Zowitsky who asked to meet with him to advise him on a sale of a business. They arranged to meet at a coffee shop. Els arrived there only to be confronted not by Zowitsky, but by a TV crew from e.tv. led by Devi. Devi called Els by name and then proceeded, with her camera crew following her and filming, to ask Els questions about why he had not refunded a certain Dr Reza his money. Els did not respond and then walked to his car. Devi and the TV crew followed, filming him climbing into his car. He heard Devi remark “nice car.” He left and then tried to contact the number on which Zowitsky had called him, only to find that the number was blocked. It is now common cause that e.tv. used the name of Zowitsky, and the possibility that he was a potential client, as a ruse to lure Els so he could be filmed by e.tv.

Application: This is an urgent interdict where the applicants seek to interdict the respondent, eMedia Investments, from broadcasting certain visual and audio material concerning them (the footage). The footage was intended to be broadcast on what is termed the "Devi Show" which is broadcast on two channels, ENCA and e.tv. The application is restricted to the footage in question.

Discussion: Since this is an application for a final interdict, Els had to establish that he has a clear right. Els asserted his right to privacy on two bases. First, his general right to privacy, and secondly, that the conduct infringes on his rights to privacy in terms of the Protection of Personal Information Act 4 of 2013 (POPIA). The first and obvious point is that Els did not consent to being filmed. Els argues that he was never approached by e.tv prior to being "ambushed" to comment on the allegations. He argues that he was lured to the coffee shop by deception. POPIA protects what it describes as the data subject’s personal information. It is an offence for someone to process someone else’s personal information. But even if the court considers that broadcasting constitutes processing as defined in the Act, it is not clear what personal information Els relies on. The footage will show him getting up and walking away to his car. Although it reveals his name, this identification is part of the broadcast in any event, which is not the subject of the interdict. Nor is his appearance an issue as it is already in the public domain on Praxley’s website.

Findings: E.tv. argues that the reliance on claims for privacy to interdict the broadcast is a fig leaf for what amounts to prior restraint. The court agrees. Els maintains that there is no public interest in his business affairs as he is not a prominent public figure and has no profile on social media. That may be so, but he has a profile on the internet and accusations concerning the propriety of his business dealings have surfaced on the internet including on the website of a private investigator. The allegations against him involve him misappropriating substantial sums of money from erstwhile clients. The allegations against him are sufficiently grave to warrant a claim of public interest. Els fails at the first hurdle for a final interdict. He has not made out a case for a clear right. He fails as well in respect of one of the others, whether he lacked a satisfactory alternative remedy. He does, he can sue in due course for damages for an invasion of privacy. Thus, no case has been made out for a final interdict.

Order: The application is dismissed.

MANOIM J

Facts: In 2020, an application for the winding up of Cape Basic Products (CBP) was launched by CBP’s creditor, Consilium Trust, on the basis that CBP was unable to pay its debts. CBP was provisionally and then finally liquidated. Subsequent to the application for winding-up being launched in court, the directors of CBP, Mr Humm and Mr Conradie, continued to trade under their trading name, Savers Lane, and made payments to the detriment of creditors. The respondent, VAB Sales and Distribution, was a creditor. The first and second applicants are the joint liquidators of CBP having been so appointed by the Master. They contend that three payments made by CBP after the date of its provisional winding up, and one payment made on the date CBP was liquidated, constitute void dispositions as envisaged in section 341(2) of the Companies Act 61 of 1973.

Application: The liquidators seek an order declaring each of the four payments, totalling R1,096,958.64 and made by CBP to VAB Sales to be void dispositions in terms of section 341(2) of the Act. They further seek an order for the repayment of the various amounts so paid, together with interest thereon, and an order for costs.

Discussion: The contentions by the respondents regarding the purpose of the payments and Savers Lane were addressed by the applicants who pointed out that Savers Lane is CBP’s trading name and is not a separate entity. Therefore the second applicant held and dealt with the assets of Savers Lane during the course of the administration of CBP in liquidation. Thus by the respondent having contracted with and received payment from Savers Lane, it in fact dealt with and received payments from CBP. What should next be considered is whether this court can validate these payments which were made in lieu of a historical debt from trade relations between CBP and the respondent. Three payments were executed subsequent to the issuance of the provisional liquidation order and accordingly the court determines that these payments are void. Furthermore, due to the void nature of these payments, they cannot be ratified by this this court, in accordance with Pride Milling Company v Bekker NO [2021] ZASCA 127. Every disposition of its property by any company being wound-up and unable to pay its debts, made after the commencement of the winding-up, shall be void unless the court otherwise orders.

The first payment: This payment of R773,650.89 was made on the same date the provisional liquidation order was granted. The fact that the insolvent company had knowledge that the application for the winding-up was enrolled on that date precluded them from making any payments to creditors in the ordinary course of business. Looking at the actual times on that day it also appeared that the payment was approved and made after the provisional liquidation order was granted. The effect of the actions of the insolvent company was to ensure that the respondent had an advantage over other creditors in the winding-up, which the respondent would otherwise not have enjoyed. It is not just and fair that the respondent be paid practically its whole outstanding debt and for the other creditors to stand empty handed at the cost of proving their claims against the insolvent company. When the winding-up application was launched there is no indication from the papers that in that week there was any new trading business between the respondent and the insolvent company. It cannot therefore be said that this disposition was made in the ordinary course of the company’s affairs.

Order: The respondent is ordered to pay the four amounts, with interest, to the applicants in their capacities as the joint liquidators of CBP. The respondent is ordered to pay the applicant’s costs of suit.

MTHIMUNYE J

Facts: The applicants are awaiting trial for the murder of the well-known soccer player, Mr Senzo Meyiwa, and are currently incarcerated at the C-Max maximum security facility of the Kgosi Mampuru II Management Area. C-Max comprises 284 cells that measure approximately 2 meters by 2,5 meters in size. Prisoners are housed in these cells individually, and on the applicants’ version, they are detained in their cells for more than 22 hours per day. The first applicant was transferred from Johannesburg Medium B to C-Max in December 2020. He has, therefore, spent almost four years in C-Max. In contrast, the second applicant has been in C-Max for a little over a year. The first applicant is apparently incarcerated at C-Max due to his “high risk profile”. The first applicant says that he has effectively been held in solitary confinement for four years. He says that he suffered a mental breakdown and that the strain of solitary confinement for such a prolonged period has left him unable to concentrate, severely stressed, with feelings of fear and hopelessness, and suffering from insomnia. Due to his mental health issues, he has apparently been unable to provide his counsel in the criminal trial with instructions in the matter. The result is that the criminal trial has been interrupted.

Application: The applicants seek relief in two parts. In Part A, which is before the court, the applicants seek an urgent order that they be transferred from C-Max to their original detention centres. In Part B, which shall be dealt with in the fullness of time, the applicants seek a declaration that their detention at C-Max is inconsistent with the Constitution and with international law, and they seek the review and setting aside of the decision of the Department of Corrections not to release them from C-Max.

Discussion: The first applicant paints a dire picture of his confinement at C-Max. He says that for 22 hours per day he has no contact with other persons. He says that he has no access to reading material, radio or television. On occasion he is allowed one hour of exercise in a cage. He is allowed a cold-water shower in a cage for two minutes per day. His telephonic contact with family members is limited to 10 minutes, twice per month, and two in-person visits of 30 minutes each per month. He is only allowed to consult with his legal team for an hour, twice per month. His case hinges on the allegation that his further incarceration at C-Max is in conflict with the respondent’s own Standard Operating Procedures (SOPs) that only allow for the incarceration of a prisoner in C-Max for eighteen months, save in certain exceptional cases. The second applicant’s incarceration, however, falls within the four walls of the Correctional Services Act 111 of 1998, the Regulations and the SOPs.

Findings: The fact that a person is awaiting trial in a so-called “high profile” or “critical” case is not, in terms of the SOPs, a basis for the indefinite incarceration of that person in C-Max. The fact is that there are numerous murder trials held every day in which the accused are not incarcerated in C-Max. In fact, there are co-accused in the same trial as the first applicant who are not incarcerated in C-Max. The question then remains: what sets the first applicant apart from the others who are on trial in the same or in similar matters, but are not incarcerated in C-Max? Not only has the first applicant been incarcerated at C-Max longer than the SOPs provide for, also, no application has been brought to extend the period. The first applicant has been detained unlawfully in C-Max beyond the 18-month period. This is one of those cases in which it would be appropriate to grant an interdict. The first applicant will still be incarcerated in a maximum-security facility, he will still stand trial, and there is no evidence that the respondent’s operations may be compromised. Should the first applicant continue to be detained in these circumstances, not only may his mental health be at risk, his further incarceration will be unlawful, and the court would be allowing an ongoing wrong to be perpetrated.

Order: The first applicant shall be removed from the C-Max Centre and returned to his centre of origin or to any other maximum-security centre that may be convenient. The second applicant’s application is struck from the roll for lack of urgency.

SWANEPOEL J

Facts: The applicant worked as a Building Manager for Mouille Grange. This was in terms of an Independent Contractor Agreement (the agreement) concluded between the parties, which Mouille Grange terminated on two months’ notice. The initial agreement between the parties was signed in 2010 and renewed in 2013. Mouille Grange alleged that the applicant had repudiated the agreement, which repudiation it accepted. The applicant challenged the termination of the agreement, contending that notwithstanding the wording of the agreement, he was, in fact, an employee and was treated as an employee from the beginning. He referred an unfair dismissal dispute to the CCMA alleging an unfair dismissal. In the award, the commissioner found that the applicant was an independent contractor and, therefore, the CCMA lacked jurisdiction to determine the dispute.

Review: The current review application, in terms of section 145 of the Labour Relations Act 66 of 1995 (LRA), is aimed at setting aside that award and substituting it with an order that the applicant was an employee. If the review succeeds, the applicant requests the court to pronounce on the "fairness of his dismissal" and find that the dismissal was both procedurally and substantively unfair. In that event, he seeks compensation.

Discussion: Where a person is an independent contractor, that is the end of the inquiry, given the specific exclusion in the definition of an employee. Section 213(a) of the LRA clearly states that an independent contractor is excluded from the definition of an employee. Section 200A of the LRA provides that until the contrary is proved, a person who works for or renders services to another is presumed to be an employee, regardless of the form of the contract, if any one or more particular factors are present. The presumption applies to employees who earn less than the threshold determined by the Minister of Labour in terms of the Employment Act. In this case, the applicant earned above the threshold, with the consequence that the presumption does not apply. The applicant was an independent contractor because the agreement said so, after he made an informed decision to be an independent contractor, which suited him best, based on his situation. He was not in a weak bargaining position, and the law does not forbid such an arrangement, which is enforceable.

Findings: The exact nature of the relationship is established by having regard to all the facts of the matter and the realities of the relationship. The fact that the applicant had several sources of income and was not economically dependent on Mouille Grange indicates an independent contractor relationship. He did not submit invoices, but the agreement required him to submit invoices, and therefore, the non-submission of invoices was not in accordance with what the parties agreed. The conclusion that the applicant was an independent contractor is correct on the facts of the matter. The independent contractor arrangement suited the applicant until Mouille Grange resolved to terminate the relationship on two months’ notice, as provided in the agreement. The termination was not that of an employment relationship. Having correctly found that the applicant was not an employee, the commissioner was also correct in not deciding the issue of dismissal, which did not arise.

Order: The review application is dismissed.

GANDIDZE AJ